In an open, pluralistic society underpinned by constitutional guarantees of freedom of expression and right to information, should media practitioners be banned? Should tv channels be gagged?

The questions arise in the backdrop of the censuring of current affairs television talkshow host Aamir Liaquat Hussain and his current employer, Bol TV, by the Pakistan Electronic Media Regulatory Authority (Pemra).

In January 2017, the regulator issued an order banning Hussain from appearing on any news channel in any form until allegations of hate speech against him were addressed by the Pemra law’s attendant regulations. The answers to these questions require some contextualisation.

An official ban is the worst form of censorship, except assassination. Over the decades, Pakistan has seen both of these varieties in plenty. Dozens of publications -- mostly print in the past but now slowly also online-only publications such as Khabaristan Times -- have been banned by both civilian governments and military regimes.

Over 80 journalists have also been target-killed since the year 2000 alone -- murders meant to serve as the imposition of the worst form of censorship for their media work.

The executive vs the statutory

In recent years, however, formal bans on print publications and tv channels have been rare in Pakistan. The principal reason has been the enactment of media-related laws such as Defamation Ordinance (2002), Freedom of Information/Right to Information laws at the federal and provincial levels (2002-13), and the establishment of Pakistan Electronic Media Regulatory Authority (2002 -- now as amended in 2007 through an act of parliament), and Press Council of Pakistan (2002), under their respective ordinances. These have instituted legal frameworks and attendant regulations that aim to pre-empt radical actions such as outright bans by allowing procedural resolutions to disputes.

In short, the media regulatory regime in Pakistan transitioned from the executive to the statutory around the start of the millennium, allowing for a procedural approach to censorship, if required. However, even in this transition there was a major exception -- Musharraf through imposition of his infamous state of emergency (later declared illegal by the superior judiciary) in 2007 put a blanket ban on electronic media through an executive order even in the presence of the media regulatory regime. This mass media ban, however, proved ineffective as internet was not banned, and the banned offline media simply went online and remained accessible.

Hussain and Bol defied the Pemra ban the same day it was imposed, and the next day successfully challenged it before the Sindh High Court, which suspended the ban. In turn, Pemra successfully challenged the SHC stay in the Supreme Court of Pakistan, getting it overturned. The case is a milestone and is expected to continue for some time, and set a precedent on how to deal with similar instances in the future.

Free speech vs hate speech

At the heart of the case are two important questions requiring legal redressal which current laws don’t answer. The first is how to resolve the inherent tension in the grainy grey area between enforcing what is essentially ‘freedom of expression’, and allowing what basically constitutes ‘hate speech’. The second is how to tackle the vexing differential between an individual (such as the ordinary citizen) expressing dissent or extreme views on a subject and an institution (such as a tv channel) assuming a position ostensibly on behalf of the public.

In both cases, the challenge is having mechanisms in place that help negotiate the grey area between freedom of expression and hate speech whenever a dispute arises, and that facilitate both freedom of expression and dissent, even if this means erring on the side of caution for higher principles.

There are no mechanisms in place in Pakistan to facilitate this or consensus.

Depending on the nature of legal frameworks the line between dissent and hate speech can be tricky, and the latter, of course, is not desirable but ventures into the territory of the unacceptable when it leans on incitement to violence to impose itself. This is the charge levied on Hussain and Bol.

However, the relevant legal instrument does not provide clarity on a way out.

Article 19 of Pakistan’s constitution guarantees freedom of expression as a fundamental right but simultaneously fetters it by limiting criticism of Islam (though not other religions), judiciary and the armed forces. Because of this, in a country historically characterised by the overt domination of one religion, pervasive lack of justice and the supremacy of the military over national polity, the supporters of these caveats can simply outgun the backers of the classicist interpretation of dissent.

Soft options vs hard choices

This narrow take-it-but-leave-it space between the soft centre of Article 19 and its harsh boundaries came to spotlight in the latest instance in January 2017 when Salman Haider and some others of his ilk of social media activists were kidnapped. Their defenders found themselves easy game for the supporters of restrictions of Article 19, coming to face the same charges of blasphemy and treason levelled at Haider et al. This is the same narrow space that will find itself being probed and measured in the Supreme Court in the Pemra vs Hussain/Bol case. This is not simply a case of whether Pemra should have first given a show-cause notice to Hussain before banning him (which didn’t happen), or vice versa.

This narrow take-it-but-leave-it space will have to be interpreted and defined for certainty (instead of its present absence), and then applied, if this case is to go beyond the procedural into the precedent.

The power of the executive can be a dangerous one if the constitution itself shies away from explicitly favouring the citizens and instead allowing substantial exemptions to the state for being accountable. This is why Geo TV was charged and punished for treason for accusing the security establishment of involvement in the attack on Hamid Mir.

In an ideal world, the Pemra vs Hussain/Bol case before the Supreme Court will settle how to treat hate speech inciting violence as well as allow dissent that doesn’t incite violence without being punished. Fingers crossed.